Last Updated: July 12th, 2021
KESSEL DIGITAL CONSULTING SERVICES AGREEMENT
This Kessel Digital Consulting Services Agreement (this “Agreement”) is effective as of the date indicated below (“Effective Date”) between the company identified on the Proposal Form (“Company”) and Kessel Digital LLC (“Consultant”).
WHEREAS, Company desires to retain Consultant to perform, as an independent contractor, various consulting services and duties as described herein, and Consultant desires to be retained for such purposes.
NOW, THEREFORE, the parties agree as follows:
Effective Date: The Date Proposal Form is last signed by both Company and Consultant.
Expiration Date: The Initial Term of this Agreement will expire one year from the Effective Date unless earlier terminated in accordance with Section 13 of this Agreement. This Agreement shall survive until expiration or termination as stated in Section 6.
Proposal Form A- , Services to be Provided: The services to be performed by Consultant are described in the Proposal Form A-1 as well as any subsequent Proposal Form (sequentially numbered: A-1, A-2, etc.), and each Exhibit A must be executed by Company and Consultant.
Terms and Conditions: The below Terms and Conditions to the Consulting Agreement are incorporated into and made a part of this Agreement.
TERMS AND CONDITIONS
TO CONSULTING AGREEMENT
1. RETENTION OF CONSULTANT.
Services; Scope. Consultant will perform the consulting services and duties described in the and incorporated Proposal Form A-1 as well as any other Proposal Forms (sequentially numbered: A-1, A-2, etc.) subsequently executed by the parties and attached hereto (“Services”). Either Company or any of its Affiliates may retain the Services of Consultant pursuant to this Agreement. For purposes of this Agreement, “Affiliate(s)” means, with respect to either party to this Agreement, any other entity or person Controlling, Controlled by, or under common Control, with such entity. “Control” (including “Controlling,” “Controlled by” and under “common Control with”) means possessing, directly or indirectly, the power to direct or cause the direction of the management policies or operations of an entity or person, whether through ownership of voting securities, by contract or other objective criteria. In connection with the performance of the Services, Consultant shall employ a standard of care, skill, and diligence consistent with professional standards practiced in its industry.
2. COMPENSATION.
a. Fees. Company will pay Consultant the fee(s) set forth in the executed Proposal Form A for the Services specified therein, or such other fee(s) as may be specified in subsequent Proposal Form A’s.
b. Expenses. Unless otherwise specified in Proposal Form A’s hereto, Company will reimburse Consultant for any Travel Expenses. “Travel Expenses” shall consist solely of reasonable and necessary travel, lodging and living expenses incurred by Consultant’s personnel in performing the Services.
c. Invoices. Unless otherwise specified in Proposal Form A’s hereto, Consultant shall invoice Company monthly for Services performed during the previous month.
d. Payment. Within fifteen (15) days of receipt of a proper and timely invoice, Company shall pay Consultant for those amounts set forth within said invoice.
e. Taxes. Company will pay all valid sales, use, excise, or other similar taxes attributable to Company hereunder. If Company is exempt from the payment of taxes described above, Company will provide Consultant with a valid tax self-assessment or exemption certificate. Consultant will discontinue all collections of taxes covered by the certificate from the date of receipt until such time, if any, Company notifies Consultant that it is no longer exempt. If either party is audited by a taxing authority or other governmental entity with respect to taxes specified in this section, the other party will reasonably cooperate with the party being audited in order to respond to the audit inquiry in an appropriate and timely manner, so that the audit and any resulting controversy may be resolved expeditiously. The parties will retain such sales, use, excise, or other similar taxes or fees records as may reasonably be requested by a taxing authority, and provide access to these records to the other party in the event of such a request, for the applicable statute of limitations, and upon notice from the other party that the statute has been extended, for any extensions thereof.
3. EQUIPMENT AND CONTENT.
a. Equipment. Except as otherwise provided herein, Consultant shall furnish and maintain all vehicles, equipment, tools, labor, and supervision necessary, required or proper for the safe and efficient performance of its obligations hereunder. Company may provide Consultant with certain computer equipment, computer accessories, and/or other various items (“Equipment”) for Consultant to use in its performance of the Services. Consultant acknowledges that the Equipment is the property of Company, and, further, that Company is permitting Consultant to use the Equipment for a limited period of time and for only those purposes contemplated herein. Consultant agrees to immediately return the Equipment to Company at the expiration or termination of this Agreement or as otherwise requested.
b. Content. Company may provide Consultant with certain data, text, images, trademarks and logos, software, application programming interfaces, documents and other materials (“Content”) for Consultant to use in its performance of the Services. Company grants Consultant a limited, non-exclusive, revocable (upon reasonable prior notice to Consultant), sub-licensable and non-transferable license to access and use the Content to make the Services available to Company in accordance with this Agreement.
c. Restrictions on Content. Unless otherwise stated in an Proposal Form A, Company will not provide Consultant with Content that includes personally identifiable information.
4. REPRESENTATIONS AND WARRANTIES. Company represents and warrant to that: (a) Company has the right and authority to enter into this Agreement and that the person signing the Agreement on behalf of Company is authorized to sign; (b) Company will comply with all applicable federal, state and local laws in the performance of its duties under the Agreement; (c) with respect to any Content that Company provides to Consultant (i) Company has full authorization to transfer the Content; (ii) Company has the full authorization to permit the use of the Content by Consultant, Consultant’s Affiliates, and Consultant’s subcontractors (if any) to perform the Services hereunder; and (ii) unless otherwise stated in an Proposal Form A, the Content will not include any personally identifiable information.
5. CONFIDENTIALITY. Company will comply with the terms of any nondisclosure agreement between Company and Consultant (or Consultant’s affiliates) (“NDA”). If no such agreement exists, Company and its representatives (a) will protect and keep confidential the existence of this Agreement (including, without limitation, all Work Orders), its terms and conditions and any other information obtained from Consultant in connection with this Agreement or related to the Services that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including but not limited to all information relating to Consultant’s technology, customers, business plans, marketing activities and finances), (b) will use such information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling its obligations under this Agreement, and (c) will return (or destroy upon request) all such information to Consultant promptly upon the termination of this Agreement. All such information will remain Consultant’s exclusive property, and Company will have no rights to use such information except as expressly provided herein. This Section 5 shall survive the expiration or termination of this Agreement and shall inure to the benefit of and be binding upon all parents, subsidiaries, affiliates, and successors of the parties.
6. TERM AND TERMINATION. The initial term of this Agreement (“Initial Term”) commences on the Effective Date and continues until the Expiration Date as set forth on the cover sheet of this Agreement, unless b) Company or Consultant terminates without or without cause upon thirty (30) days prior written (including email) notice to the other party; Upon the expiration of the Initial Term, this Agreement will automatically renew for additional one year periods (“Renewal Term(s)”), unless otherwise terminated as set forth herein. The “Initial Term” and any “Renewal Term(s)” collectively shall be referred to as the “Term.” Notwithstanding the foregoing, the engagements represented by the Proposal Form A’s hereto may have separate commencement and end dates or terminations without affecting the Term of this Agreement, and if the parties agree to terminate the Agreement for reasons other than breach and an Proposal Form A is still in effect at the time of termination, and unless such Proposal Form A is cancelled by Company, the terms and conditions contained in this Agreement shall continue to govern the outstanding Proposal Form A until termination or expiration of said outstanding Proposal Form A.
7. PURCHASES. Neither Company nor Consultant shall enter into any contract or incur any debt, liability or obligation on behalf of the other party. Neither Consultant nor Company shall be entitled to or shall utilize any discount, bonus or other marketing incentive earned by or made available to the other party.
8. LIMITATION OF LIABILITY. Consultant shall not be liable for any incidental, consequential, indirect or special damages, or for any loss of profits or business interruptions caused or alleged to have been caused by the performance or nonperformance of the Services. Company agrees that Company’s sole remedy against Consultant for any claims is limited to a refund of payments made by Company for Services, less expenses paid to subcontractors or to third parties. The Consultant is not responsible for errors which result from faulty or incomplete information supplied to Consultant by Company. Company also agrees to not seek damages in excess of the contractually agreed upon limitations directly or indirectly through suits by or against other parties. Consultant shall not be liable to Company for any costs, damages or delays due to causes beyond its control, expressly including without limitation, unknown site characteristics; changes in policies, changes in terms of services. IN NO EVENT WILL CONSULTANT’S LIABILITY ARISING OUR OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY COMPANY TO CONSULTANT UNDER THIS AGREEMENT.
9. INDEMNITY. Company agrees to indemnify, defend and hold harmless, Consultant (and its Affiliates and their respective officers, directors, employees and agents) from and against any and all third party claims, losses, costs, obligations, liabilities, damages, actions, suits, allegations, actions, causes of action, demands, liens, encumbrances, security interests, expenses, settlements, and judgments, of whatever type or nature (“Claims”), which are asserted against, incurred by, imposed upon or suffered by Consultant by reason of, or arising from: (a) breach of this Agreement by Company, including any breach of the representations and warranties; (b) violation of any law, ordinance, rule, or regulation by Company; (c) infringement by Company of any patent, copyright, trademark, trade secret or other property or contract right of any other person; and (d) the negligence or willful misconduct of Company. Consultant will provide Company with prompt notice of any Claim which Consultant believes falls within the scope of this section and Company’s indemnification obligations.
10. MISCELLANEOUS.
a. Notices. Except as otherwise expressly permitted within this Agreement, each party shall comply with the following requirements when providing any notices or approvals under this Agreement. Notices or approvals shall be (a) given in writing addressed to the other party at the mailing address set forth below, with a copy of any such notice or approval emailed to the email address set forth below on the same day that the notice or approval is mailed, and (b) deemed to have been received by the other party two business days after it is mailed by first class mail or recognized overnight courier. Either party may provide the other with notice of a change in mailing or email address pursuant to the requirements of this Section 10 (a), in which case the mailing or email address, as applicable, for that party will be deemed to have been amended. The mailing addresses and email addresses of the parties are as follows:
Company:
Name address, phone and email as indicated on the Proposal Form.
Consultant:
Kevin Bauer
Kessel Digital LLC
1116 Francesca Ct
Chaska, MN 55318
With a copy via email to:
b. Dispute Resolution. In the event of a dispute, either party may call for escalation by written notice to the other party. Within 5 business days of such notice each party shall designate an executive with authority to make commitments that would resolve the dispute (“Executive”). The parties Executives shall meet in person or by telephone (“Dispute Conference”) within 5 business days of their designation send shall negotiate in good faith to resolve the dispute. Except to the extent necessary to prevent irreparable harm neither party shall initiate litigation until 10 business days after the Dispute Conference.
c. Governing Law; Jurisdiction. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of Minnesota without regard to its rule of conflicts of laws. Consultant and Company expressly consent and submit to the exclusive jurisdiction of the state and federal district courts located in Minneapolis, Minnesota.
d. Headings. The headings contained herein are for the convenience of reference only and are not of substantive effect.
e. Nonexclusivity. This Agreement shall not be deemed to create an exclusive relationship between Company and Consultant.
f. Severability. If any provision herein shall be deemed or declared unenforceable, invalid, or void by a court of competent jurisdiction, the same shall not impair any of the other provisions contained herein which shall be enforced in accordance with their respective terms.
g. Remedies; Waiver. No failure or delay by either party to exercise any right, power or privilege provided under this Agreement or by applicable law shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power, or privilege preclude any other or future exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein shall be cumulative and shall not be exclusive of any rights or remedies provided by law.
h. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any prior oral or written agreements, between the parties with respect to the subject matter hereof. This Agreement may not be amended except by a writing signed by both parties.
i. Conflict Between Proposal Form and Agreement. All of the Services shall be performed pursuant to the provisions of this Agreement. Any conflict between the terms of this Agreement and a Proposal Form will be resolved in favor of the Agreement unless the Proposal Form explicitly states that it is intended to modify the conflicting terms of this Agreement
j. Counterparts. The parties acknowledge and agree that this Agreement may be executed in any number of counterparts, each of which when delivered will be deemed to be an original and all of which together will constitute one and the same document.
END OF TERMS AND CONDITIONS